Should We Kill Anwar Al-Awlaki?

Andrew Sullivan and Glenn Greenwald have been having an interesting exchange about the Anwar al-Awlaki case. To review, the A.C.L.U. and the Center for Constitutional Rights are suing the Obama Administration, on behalf of al-Awlaki’s father, who objects to the government putting his son on a list of targets for assassination without any sort of trial or judicial proceeding. Al-Awlaki is an American citizen (he was born in New Mexico) and alleged Al Qaeda associate, who is living in Yemen. The Administration responded by trying to get the father’s case dismissed, citing, among other things, the state-secrets privilege. This would keep even the question of whether al-Awlaki should get a day in court from getting a day in court.

Neither Greenwald nor Sullivan approves of the state-secrets privilege being used as profligately as it has been in recent years, but Sullivan doesn’t mind the part about the extrajudicial assassination of an American citizen. Greenwald (and this is needless to say for anyone who reads his work) does mind. There are two key points to their disagreement; on both of them, Greenwald is more persuasive.

Sullivan thinks that there is a sprawling international battlefield in the war on terror on which al-Awlaki can be said to be a soldier. But we are not at war with Yemen—not yet. Or are we just talking about a metaphorical, or figurative, battlefield? What are this battlefield’s boundaries—does it have any? If our fight against Al Qaeda is truly global, can the President order an American citizen assassinated without due process in London, or, for that matter, in Brooklyn?

Greenwald asks Sullivan how he knows that al-Awlaki is a terrorist at all. Sullivan is pretty scornful of this one. He cites speeches and documents and dates—he refers readers to Wikipedia—and asks,

Is [Greenwald] really trying to say that despite all this public evidence, and with this record of terror attacks, we need a full civil trial—even if we were able to capture him—to know that this individual is at war with his own country and a direct threat to all of us?

But the very abundance of evidence shows how absurd and dangerous the government’s position is. Sullivan is writing as though court proceedings were solely forensic tools. That is one of their functions. But we try people whose guilt is obvious all the time. (Just look at the awful trial concluded today in Cheshire, Connecticut.) We don’t skip the part with the judge and the lawyers and the actual listing of specific charges—as opposed to applying a general label of “bad” or “dangerous”—just because someone is caught red-handed, or even if it’s just to accept a guilty plea. We go through all that because the rule of law is meaningful to us, and we don’t want the question of whether someone needs or doesn’t need a trial to be left to the frenzy of the moment. Sullivan says that al-Awlaki is “self-evidently” a terrorist. There are truths that we hold to be self-evident in our system, but they speak in favor of going to court. And here is the important thing: If Awlaki is so clearly, blatantly, a terrorist—if we are knee-deep in evidence to that effect—then why, exactly, wouldn’t the government just get some sort of indictment, or at least stand in front of a judge and explain why it wants to kill him?

There are at least two answers, both bad: first, convenience; the second, to establish the principle that the government shouldn’t have to go to court before it decides to kill anyone it thinks is dangerous. And that is a very bad principle.

After all, if the government won’t get an indictment for al-Awlaki—who, given all the evidence Sullivan cites, should be very indictable—why would it get one for someone who is more marginal, and against whom it has a more ambiguous case that is harder to prove? How about for someone who poses a “danger” to the political interests of a given Administration, rather than to the actual safety of the American people? This goes back to convenience: the use of the state-secrets privilege in this case, which doesn't seem to depend on real secrets, is a good reminder that governments, unless we keep our eyes on them, have a bad habit of taking the easy path if one is available. And that ends up eroding everybody’s rights.

Again, Sullivan also thinks that the Obama Administration’s decision to cite “state secrets” to avoid explaining why it wanted to kill al-Awlaki was “a step way to far.” But he makes it sound as though, if they hadn’t invoked that privilege, such an explanation would be part of the normal assassination process. It wouldn’t have been. The Administration was only called into court at all because al-Awlaki’s father sued. What if he didn’t have a litigious father? The next person on the list might not.

There are an awful lot of false exigencies in this case. Al-Awlaki is not running across a crowded street with a suitcase bomb in his hand, leaving us no choice but to shoot him down. We’ve been after him for months. Why hasn’t that been time enough to, say, go to a grand jury? Is it so hard to imagine trying to force an extradition, or sending support for Yemeni forces to arrest him?

Is this all about being able to drop a bomb on a house in another country where we think al-Awlaki is living, rather than dealing with the trouble and risk of arresting him? Are there Wikipedia pages for any children or other civilians who might be in that house? Al-Awlaki is not some sort of master engineer or nuclear scientist; he is a propagandist. As such, we should take care that we don’t ourselves craft a piece of propaganda for Al Qaeda. It would also be a real moral failure if we were taking this approach because of some speech he might make at a trial. There is nothing he can say that we can’t answer. One of the charges (in the colloquial, not legal sense) again al-Awlaki is that he inspired Faisal Shahzad, who tried to set off a bomb in Times Square. Shahzad stood in front of a judge today and was sentenced to life in prison. Courts do work; we might remember why we have them.

Amy Davidson Sorkin, a New Yorker staff writer, is a regular contributor to Comment for the magazine and writes a Web column, in which she covers war, sports, and everything in between.

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